July 5, 2011 | 6:29 pm

U.S. citizenship

Posted by Cedric M. Shen

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Foreign nationals must first have been a U.S. permanent resident for a certain period of time before being eligible for U.S. citizenship through naturalization. When a foreign citizen obtained permanent residency through marriage to a U.S. citizen, he/she can apply for naturalization three (3) years after becoming a permanent resident. When a foreign citizen obtained permanent residency through employment or though a family member, he/she can apply for naturalization five (5) years after becoming a permanent resident. If you were born in another country but you have a U.S. citizen parent, you may also qualify for U.S. citizenship through naturalization.

Continuous residence requirement

It is not enough that you are a permanent resident for three or five years before seeking U.S. citizenship.  You must also satisfy a continuous residence requirement, which means that you have to physically reside within the U.S. for a certain period of time in the years prior to applying for citizenship. For green cards through marriage, the foreign citizen must have been physically present in the U.S. for at least 18 months (1.5 years) of the 3 years prior to applying for citizenship while on a green card. For green cards through employment or family, the foreign citizen must have been physically present in the U.S. for at least 30 months (2.5 years) of the 5 years prior to applying for citizenship while on a green card.

Generally, you should not leave the U.S. for a continuous period of more than six months.  Doing so may break your continuous residence time unless you can demonstrate that you continue to work, reside, pay taxes and have ties to the U.S.  If you leave the U.S. for a continuous period of one year or more, you may be deemed to have abandoned your permanent residency and lose your accumulated continuous residence time.  If you plan to leave the U.S. for a year, but to return afterwards, it is recommended that you apply for a re-entry permit prior to your departure.  This will show the government that you intend to return and that you do not intend to abandon your permanent residency status.

In addition to the physical presence requirement, foreign citizens must also reside in the state or district from which they are applying for at least three months before seeking U.S. citizenship.  Applicants must also demonstrate good moral character, a good understanding of the English language, and a loyalty to support and to defend the U.S. Constitution.

June 28, 2011 | 11:47 am

Canadians in the USA

Posted by Cedric M. Shen

A new resource site for Canadians living, studying, traveling, working or moving to the United States: www.CanadiansInUSA.com.

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June 21, 2011 | 6:25 pm

Family-based green cards

Posted by Cedric M. Shen

Foreign nationals with relatives who are U.S. citizens may be able to obtain a green card if certain and specific relationships exist.  Different categories of relatives dictate whether, and how soon, you can get a green card.

Immediate relatives

One category is known as “immediate relatives,” which includes:

1) spouses of U.S. citizens;
2) parents of U.S. citizens who are over 21; and
3) children of U.S. citizens who are under 21.

Any foreign national who falls under one of these categories are immediately eligible for a green card without having to wait for a visa to become available.  Assuming that the application process goes smoothly, a foreign national can anticipate receiving a green card within one year of filing the application.

Family preference categories

If you do not fall into one of the “immediate relative” categories, do not despair.  There are other categories known as “family preference categories” which may still allow a relative to petition for a green card on your behalf.  These relationships include:

1) unmarried sons or daughters (over 21) of U.S. citizens;
2) married children of U.S. citizens who are of any age;
3) brothers and sisters of U.S. citizens who are over 21; and
4) spouses or children of U.S. green card holders.

Unfortunately, foreign nationals seeking a green card under a family preference category will have to wait several years before a visa becomes available.  If you are looking to obtain a green card through this route, you may want to explore other options - including marriage to a U.S. citizen, investing in an EB-5 green card, or obtaining a green card through employment.

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June 8, 2011 | 4:31 pm

Employment-based green cards

Posted by Cedric M. Shen

Foreign nationals who are working for a U.S. employer on a valid work visa may adjust their status to a permanent resident if the employer files an employment-based petition.  Employment-based petitions are divided into five categories:  EB-1, EB-2, EB-3, EB-4 and EB-5.  We will limit our discussion to EB-1, EB-2, EB-3 in this section.  EB-5 green cards were discussed in a previous entry.

The wait time for employment-based green card petitions are based on “priority dates.”  This is a method of cross-referencing a beneficiary’s country of birth and the employment-based category to determine whether a visa is currently available and, if not, how long the wait is.  Different countries have different priority dates.  An individual born in Canada seeking an employment-based green card is generally in a better position compared to citizens of other countries, such as China, India, Mexico or the Philippines.  This is because the priority dates for those born in Canada under an EB-1 and EB-2 visas are all “current.”  This means that a visa is available for them immediately and that their petitions will not be backlogged.  In fact, EB-3 is the only category that is backlogged for those born in Canada.

EB-1

The EB-1 category is reserved for an exclusive group of people, and it likely will not apply to 99% of all applicants.  By definition, it applies to individuals of extraordinary ability in the arts, sciences, education, businesses or athletics; or outstanding professors or researchers.  Only those in the very top of their respective field, as demonstrated through sustained national or international acclaim, will qualify for this green card.  Unlike EB-2 and EB-3 green cards, the Canadian applicant does not need an employer to file a petition on his/her behalf.  So who are these individuals?  There is no restriction with respect to education or profession.  It can be anybody who is one of the very best at what they do: a Michelin-award winning chef, an Olympic medal-winning athlete, a Nobel Prize-winning scientist, a Juno-award winning singer/songwriter, a published author, a renowned professor, or an Academy Award-winning actress.

EB-2

The EB-2 category is reserved for individuals of exceptional ability in the arts, sciences or business; individuals with advanced degrees (M.D., J.D., LLM, Ph.D. etc.); and foreign doctors who will practice in an underserved area in the U.S.  Foreign nationals who qualify for an EB-2 green card must have an employer who is willing to file a petition on his/her behalf.

EB-3

The EB-3 category is reserved for skilled workers with two years training and experience; professionals with bachelor’s degrees; and other “unskilled” workers.  As with the EB-2 green card, Foreign nationals who qualify for an EB-3 green card must have an employer who is willing to file a petition on his/her behalf.

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June 6, 2011 | 2:39 pm

Obtaining Permanent Residency Through Marriage to a U.S. Citizen

Posted by Cedric M. Shen

A foreign national who has married a U.S. citizen is generally entitled to apply for permanent residency.  This process is known as “adjustment of status,” and it requires the cooperation of both the U.S. citizen as well as the foreign national spouse.

Procedure

The U.S. citizen spouse will file a form known as “Petition for Alien Relative” with the USCIS, petitioning for the foreign spouse to become a U.S. permanent resident.  As part of the petition, the U.S. citizen will also have to sign an affidavit of support, declaring that he/she will be financially able to support the Foreign national and that he/she will not be a public charge.  In other words, the U.S. citizen spouse is declaring that he/she can support his/her spouse so that the spouse does not become a burden to society by way of collecting unemployment insurance etc.

The Foreign national spouse may concurrently file a form known as an Application to Register Permanent Residence or Adjust Status, seeking to change the foreign national’s current immigration status to that of a permanent resident.  Depending on the foreign national’s situation, he/she may also apply for a temporary work permit or a temporary travel permit.  These are optional, and should only be sought if the Foreign national is not currently on a valid work visa or anticipates that the work visa will expire before the green card is approved.  The Foreign national will also have to get fingerprinted and undergo a medical examination by a designated civil surgeon to ensure that he/she is healthy - again, so as not to become a public charge.

Conditional residency

Upon approval of the adjustment of status, the Foreign national will be given what is known as “conditional residency.”  This means that the Foreign national will be a U.S. resident and will get a green card - with a caveat.  The caveat is that the both spouses must jointly apply to remove the condition within the three months prior to the second anniversary of receiving residency, thereby turning the “conditional residency” into “permanent residency.”

Example: Johnny married a U.S. citizen in 2010.  After filing all the paperwork, he received his conditional residency green card on January 1, 2011.  He and his wife must apply to remove the condition of his residency sometime between October 1, 2012 and December 31, 2012 - since this is the three-month period just prior to January 1, 2013, which is the second anniversary of receiving conditional residency.

The rationale behind this process is to prevent non-U.S. citizens from entering into fraudulent marriages in order to obtain a green card.  After all, many foreigners marry U.S. citizens simply to get a green card in order to stay and work in the country.  The USCIS requires married couples to show that their marriage is still intact two years later in order to curtail such abuse.

Once the application for removal of the condition is removed, the Foreign national becomes a full-fledged U.S. permanent resident.  Be careful though, as the Foreign national risks losing his/her residency if the couple forgets to remove the condition within the appropriate timeframe.  So remember to mark the one-year and nine-month date of receiving conditional residency on your calendar. 

What if I get divorced before the two-year anniversary?

It is common in this day and age for marriages to last fewer than two years (or even two months, for that matter).  For Foreign nationals whose conditional residency has not been removed, this could problems with their immigration status.  Generally, divorce terminates conditional residence.  However, the Foreign national may be able to apply for a waiver of the failure or requirement to remove the condition if he/she can prove that the marriage was bona fide, entered into in good faith, and that he/she was not at fault for failing to file the joint petition.

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June 6, 2011 | 2:31 pm

H-1B odds and ends

Posted by Cedric M. Shen

Graduate Degrees

In addition to the annual 65,000 H-1B visas, Congress has allotted an additional 20,000 H-1B visas for people with advanced degrees (M.D., J.D., MBA, Ph.D. etc.).  So if you are a foreign national with a medical degree, law degree, or any other graduate degree, you are eligible to be considered for one of the 20,000 Master’s Cap visas beyond the 65,000 regular cap.  This is beneficial because applicants with a graduate degree do not fall into the general pool of applicants - of which there are usually more than the allotted 65,000.  It should also be noted that foreign nationals with a graduate degree have a leg up when it comes to obtaining a green card through employment.  I will be discussing employment-based green cards in the near future.

Fashion Models

International fashion models can also work in the United States on an H-1B visa.  While the H-1B visa generally requires the beneficiary to have a bachelor’s degree or higher, a fashion model under an H-1B does not need to have such a degree.  Instead, the requirements for a fashion model under an H-1B visa are that he/she is of “distinguished merit or ability.”  What does that mean?  Stated simply, the fashion model must be prominent, is nationally or internationally recognized, and has reached a high level of achievement in the field of fashion modeling.  Thus, the requirements for a fashion model under an H-1B visa are very different than “specialty occupations,” where educational level and job duties are more of a determining factor.  Instead, the requirements of an H-1B for fashion models are more like those needed for a beneficiary of extraordinary ability under an O visa.

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May 23, 2011 | 9:38 am

K visa for fiancés

Posted by Cedric M. Shen

The K-1 visa is for the unmarried, foreign national fiancé of a U.S. citizen living abroad. This visa allows the foreign national fiancé to enter the United States in order to marry the U.S. citizen sponsor within ninety (90) days of arrival.  The foreign national may also bring his/her children under K-2 visas.

Qualifications

To qualify for the K visa, both the U.S. citizen and the foreign national must have been legally free to marry at the time the petition was filed and must have remained so thereafter.  In other words, both parties must have been of legal and were not otherwise married to other spouses.  In addition, the marriage must be legal pursuant to the laws of the U.S. state in which the marriage will take place.  Additionally, both parties must have met in person within the past two years.  For example, if a U.S. citizen met a foreign national through an online dating site, and have been communicating via email without ever having met in person, they would not qualify for a K visa.  An exception to this requirement may be made based on extreme hardship for the U.S. citizen sponsor to personally meet the foreign-citizen fiancé or if it is contrary in the U.S. citizen sponsor’s or foreign-citizen fiancé’s culture for a man and woman to meet before marriage.  However, it is very unlikely that this type of exception will be made by the USCIS in instances involving most foreign national fiancés.

Procedure

The first step requires the U.S. citizen to file a petition with the USCIS.  Once approved, the petition will be sent to the consulate in the foreign national’s home country where he/she will apply for the K visa.  This process will usually require an interview, fingerprinting, providing certain documents, including results of a medical examination, proof of vaccinations and proof of financial support.  Upon approval, the foreign national fiancé may enter the United States, at which time he/she will have to marry the U.S. citizen within ninety days.

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May 10, 2011 | 4:42 pm

L Visas - Intra-company transferees

Posted by Cedric M. Shen

Transferring to a U.S. company

The L visa allows a U.S. employer to transfer a manager or an executive from an affiliated foreign office to one of its U.S. offices.  The employer must be doing business in the U.S. and it must have an existing relationship with the foreign company (such as being a parent company, affiliate, subsidiary etc.).  Furthermore, the employee must have been working for the affiliated employer in the foreign country for at least one continuous year within the three years prior to being issued an L visa, and he/she must be going to the U.S. to render services as a manager/executive.  Employees will be granted an initial three-year L visa.

Example:  KPMG is an accounting company with offices in Canada and in the United States.  Sally is a Canadian citizen who has been working as a financial accounting director for KPMG in its Vancouver offices for the past four years.  She has accepted a position to work as a financial accounting director at KPMG in its New York office.  She is eligible to work in New York under an L visa.
Example:  Sally has only been working as a financial accounting director at KPMG in Vancouver for the past six months.  She is not eligible for an L visa to work in the New York office.  However, she may be eligible for a TN visa or an H-1B visa if, for example, she is a CPA or has at least a bachelor’s degree in accounting or a related field.

Setting up a U.S. affiliate company

The L visa also allows a foreign company that does not yet have an affiliated U.S. office to send a manager/executive to the United States for the purpose of setting one up.  To do so, the foreign company must demonstrate that: 1) sufficient physical premises to house the new office have been secured; 2) the employee has been employed as a manager/executive for one of the three previous years; and 3) the new U.S. offices will support an executive/managerial position within a year of the L visa being issued.  These employees will be granted an initial one-year L visa.  This is an ideal visa for foreign companies looking to expand to the United States and should be considered as an alternative to the E visa.

Family of L visa holders

Employees under an L visa are also allowed to bring their spouses and unmarried children under 21 years of age to the U.S. under an L-2 classification for the same period of stay as the primary employee.  Spouses of L visa holders are allowed to work in the United States as well.

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